Legal Theory

By Debra Cassens Weiss

Feb 5, 2014, 11:50 am CST

The complaint is oft repeated: The rich can afford more justice than the poor.

Now a New Republic essay by senior editor Noam Scheiber offers a solution: Socialize the law. Boost spending on lawyers for those of lesser means, and cap spending by the affluent.

Scheiber says ensuring adequate procedural rights doesn’t go far enough. What’s needed, he says, is to make sure that “everyone has the exact same procedural rights.” If the rich have more rights, he says, “then by definition everyone else has fewer rights and lesser status.”

Scheiber describes his proposal this way: “In criminal cases, we decide what the accused should be able to spend to defend themselves against a given charge—securities fraud, grand theft, manslaughter, etc. No one can spend more, even if she has the money, and those who can’t afford the limit would receive a subsidy for the full amount beyond what they would have spent on their own (say, beyond a certain percentage of their annual salary or net worth). In civil cases, we decide what the plaintiff should be able to spend to pursue an award of a particular amount, or to pursue a particular kind of claim, and what the defendant should be able to spend in response. The same subsidies would apply.”

Scheiber acknowledges the spending caps would be difficult to police. Even if the rich can’t hire lawyers to represent them in an official capacity, they could still consult with lawyer friends or hire people with legal knowledge for informal advice. But that doesn’t mean we shouldn’t try for a more equitable system, he argues. “Just because you can’t make the world a perfectly fair place doesn’t mean you can’t make it fairer,” he writes.